Posting the Ten Commandments as a Historical Document in Public Schools

University of Nebraska - Lincoln DigitalCommons@University of Nebraska - Lincoln Publications of the University of Nebraska Public Policy Center Public Policy Center, University of Nebraska 2002 Posting the Ten Commandments as a Historical Document in Public Schools Tarik Abdel-Monem University of Nebraska - Lincoln, tabdelmonem2@unl.edu Follow this and additional works at: http://digitalcommons.unl.edu/publicpolicypublications Part of the Public Policy Commons Abdel-Monem, Tarik, "Posting the Ten Commandments as a Historical Document in Public Schools" (2002). Publications of the University of Nebraska Public Policy Center. 43. http://digitalcommons.unl.edu/publicpolicypublications/43 This Article is brought to you for free and open access by the Public Policy Center, University of Nebraska at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Publications of the University of Nebraska Public Policy Center by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln.

Abdel-Monem in Iowa Law Review (2001-2002) 87. Copyright 2002, University of Iowa. Used by permission. Posting the Ten Commandments as a Historical Document in Public Schools Tarik Abdel-Monem I. INTRODUCTION... 1024 II. BACKGROUND... 1025 A. TROMLEMON TO LYNCH: ThE SEARCHFORA UNIFYING ESTABLISHMENT CLAUSE TEsT... 1025 B. ENDORSEMENT BECOMES THE CPJTICAL ESTABLISHMENT CLAUSE TFST... 1032 C. DETERMINENG GOVERMENTPURPOSE... 1034 D. THE IMPORTANCE OFPROTECTING SCHOOLCHILDREN... 1037 III. ANALYSIS... 1041 A. THE T)3N COMMANDME S... 1041 B. TE "HANG TEN"MOVEMNT... 1043 C. CONSIDERING THE CONSTITUTIONALITY OF "HANG TEw"DISPLAYS.. 1047 1. Differentiating Between "Hang Ten" and Lynch/Allegheny Displays, and the Applicability of the Endorsem ent Test... 1048 2. The Endorsement Test and Textual Purpose... 1051 3. The Endorsement Test and Nontextual Purpose... 1052 IV. CONCLUSION... 1054 A. HOWSHOULD COURTsEXAMmN "HANG TEN"DISPLAYS... 1054 B. ARE TERE ALTERATivES TO "HANG TN"?... 1055 J.D. Candidate 2002. 1023

1024 87 IOWA LAWREVIEW [2002] I. INTRODUCTION The notion of religion being introduced in a public school setting is a controversial and socially divisive topic. When the church encroaches on the state's domain, courts are called upon to adjudicate the matter as a constitutional issue.' If public schools impose religion on students, courts invoke the Constitution's Establishment Clause, which states: "Congress shall make no law respecting an establishment of religion." 2 The courts should prepare themselves for a new round of Establishment Clause cases. "Hang Ten"-a movement to post the Ten Commandments in public schools and buildings-has arrived, raising intense debate in communities and state legislatures across the nation. 3 By mid-may of 2000, three states had enacted laws allowing public schools to "Hang Ten" in classrooms, but with a caveat-only if the Ten Commandments are posted alongside documents like the Declaration of Independence or United States Constitution. 4 According to "Hang Ten" proponents, such classroom displays ostensibly present the Ten Commandments as a historical document, not a religious tenet, contributing to a secular educational display of fundamental historic documents. 5 Is "Hang Ten" permissible under the Establishment Clause? Supreme 6 Court decisions leave ample room for debate. In Stone v. Graham, the Court ruled that public schools could not post the Ten Commandments in classrooms because of its clear religious nature. 7 In Stone, however, the Commandments hung alone. 8 Instead, the constitutionality of "Hang Ten" could hinge on Lynch v. Donnellyg and Allegheny v. ACLU. 1 In those cases, the Court upheld government holiday displays of religious imagery-a nativity 1. Notable cases involving church-state conflict in public schools include Santa Fe Indepent School Distict v. Doe, 530 U.S. 290 (2000); Leev. Weisman, 505 U.S. 577 (1992); Wallace v.jaffree, 472 U.S. 38 (1985); and Lemon v. Kurtzman, 403 U.S. 602 (1971). 2. U.S. CONST. amend. I. The Establishment Clause applies to the states via the Fourteenth Amendment. U.S. CONST. amend. XIV, 1. 3. See infra Part III.B for discussion of the "Hang Ten" movement. 4. See B. A. Robinson, The Ten Commandments; Recent Legal Developments Re: Posting Them in Public Schools and Government Offices, at http://www.religioustolerance.org/chrloc3.htm (last visited Oct. 17, 2001) (on file with the Iowa Law Review) (noting new laws in Indiana, Kentucky, and South Dakota, allowing the Ten Commandments to be posted in public schools and other government buildings). This Note focuses primarily on "Hang Ten" displays in public schools. 5. See infra notes 194-96 and accompanying text for descriptions of "Hang Ten" displays. 6. 449 U.S. 39 (1980). 7. Id. at 42. 8. Id. at 39. 9. 465 U.S. 668 (1984). 10. 492 U.S. 573 (1989).

POSTING THE TEN COMMANDMENTS 1025 scene and menorah-because they were "secularized" by other items in the display that negated the religious nature of those two symbols." There are movements to "Hang Ten" in government buildings and property in many communities, including schools, court houses, and municipal buildings in general. This Note focuses on "Hang Ten" displays in public schools, where the targeted audience-schoolchildren-may be particularly vulnerable to direct or subtle religious influence. This Note examines Stone, Lynch, Allegheny, and other Supreme Court cases that may provide an answer to the constitutional question prompted by "Hang Ten." Part II outlines the Supreme Court's development of Establishment Clause analyses in its case law, examines the characteristics of the Court's currently used "endorsement" analysis to church-state cases, reviews the Court's methods of determining government purpose behind religious activities, and examines the treatment of church-state cases involving schoolchildren. Part III provides background information on the Ten Commandments and the "Hang Ten" movement, suggests a framework for analyzing the constitutionality of "Hang Ten" displays, and proposes a result consistent with that framework. Part IV concludes with a recommendation that courts should strike down "Hang Ten" displays if they are intended to promote religious ideals. The author also offers some afterthoughts relevant to this new development in public schools. II. BACKGROUND Thomas Jefferson wrote that the Establishment Clause builds a "wall of separation between church and State." 12 Yet almost two hundred years later, the Supreme Court's handling of church-state cases reveals the lack of any unifying theory consistent with this metaphor. In the past thirty years, the Court's application of an Establishment Clause analysis has evolved and changed on an almost case-by-case basis. One frustrated federal district court described this ongoing variation as "the random approach by the Supreme Court to its analysis of Establishment Clause cases." 13 A review of the Court's treatment of Establishment Clause cases is warranted. A. FROMLEMON TO LYNCH: THE SEARCHFORA UNIFYING ESTABLiSHMENT CLAUSE TEST In the past three decades, the Supreme Court has applied several different tests to Establishment Clause cases, often times tailoring its analyses to the specific facts of a particular case. The Court has often referred to a 11. See infra notes 46-96 and accompanying text for discussion on the Court's analyses of these cases. 12. Letter from Thomas Jefferson to Messrs. Nehemiah Dodge, Ephraim Robbins, and Stephen S. Nelson, a Committee of the Danbury Baptist Assocoation in the State of Connecticut (Jan. 1, 1802), in THE COMPLETEJEFFERSON 519 (Saul Padover ed., 1943). 13. ACLU v. Eckels, 589 F. Supp. 222, 233 (S.D. Tex. 1984).

1026 87 IOWA LAWREVIEW [2002] three-factor test set forth in Lemon v. Kurtzman 14 to determine if church-state relations violated the Establishment Clause. Known as the Lemon test, a statute or state practice is permissible under the Establishment Clause if it meets the following criteria: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion.., finally, the statute must not foster 'an excessive government entanglement with religion.' 1 5 If any of these prongs are not met, the statute or practice is unconstitutional. 1 6 The Supreme Court used the Lemon test in Stone v. Graham' 7 to review a Kentucky law mandating display of the Ten Commandments in public schools. 18 The statute required that the Commandments be displayed in every Kentucky elementary and secondary public schoolroom, paid for with money contributed from private sources. 9 Particularly notable of the statute was the requirement that a statement reading "[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States" be placed under the Commandments. 20 This statement indicated the Kentucky legislature's intention to present the Ten Commandments as a document of secular significance. The Court struck down the statute in a brief per curiam ruling. 2 1 Finding no secular legislative purpose to the law under the first prong of the 14. 403 U.S. 602 (1971). 15. Id. at 612-13 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)). 16. See Stone v. Graham, 449 U.S. 39, 40-41 (1980) (noting that if any of the three Lemon prongs are not met, the statute is unconstitutional and the reviewing court need not inquire further into the remaining prongs). 17. I& at39. 18. See id. at 40-41 (stating and employing the Lemon test to the Kentucky statute). 19. The Kentucky statute read: (1) It shall be the duty of the Superintendent of Public Instruction, provided sufficient funds are available as provided in subsection (3) of this section, to ensure that a durable, permanent copy of the Ten Commandments shall be displayed on a wall in each public elementary and secondary school classroom in the Commonwealth. The copy shall be sixteen (16) inches wide by twenty (20) inches high. (2) In small print below the last commandment shall appear a notation concerning the purpose of the display, as follows: "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States." (3) The copies required by this section shall be purchased with funds made available through voluntary contributions made to the State Treasurer for the purposes of this section. KY. REV. STAT. ANN. 158.178 (Michie 1996). This statute was deemed unconstitutional in Stone v. Graham, 449 U.S. 39, 42 (1980). 20. Stone, 449 U.S. at 41 (citing KY. REV. STAT. ANN. 158.178 (Michie 1980)). 21. Id. at 43 (deeming the statute unconstitutional).

POSTING THE TEN COMMANDMENTS 1027 Lemon test, the Court refrained from even considering the second and third prongs of the Lemon test. 22 Kentucky's avowed secular purpose of displaying the Commandments as an historically influential legal code was not legitimate The Court concluded that there was no educational purpose to the statute, and its only effect would "be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments." 24 Even though there may have been a secular purpose to promote moral values in schoolchildren, to accomplish such a purpose by posting the Ten Commandments was determined to be an unconstitutional religious practice.2 The Court applied a starkly different test to a case involving a state's 26 regulation of solicitations by religious organizations. In Larson v. Valente, 27 plaintiffs challenged a Minnesota solicitation law that distinguished between religious organizations that obtained more than fifty percent of their funds from nonmembers and those that did not. 2 8 The Court found that the law was discriminatory on its face for exempting larger religious organizations from its requirements, such as the Catholic church, but not lesser-known sects. 29 Additionally, the Court examined the legislative history 30 to find a discriminatory intent by Minnesota lawmakers. Because the statute favored some religious organizations over others, the Court declined to use the Lemon test. 31 Instead, noting that "denominational neutrality" 32 is the touchstone of the Establishment Clause, the Court applied strict scrutiny to the Minnesota statute. 33 Finding neither a 22. See id. at 41 ("We conclude that Kentucky's statute requiring the posting of the Ten Commandments in public schoolrooms had no secular legislative purpose, and is therefore unconstitutional."). 23. See id. (noting that the statute's labeling requirement did not obscure the undeniable religious nature of the Ten Commandments and its place in the Christian andjewish religions). 24. 1& at 42. 25. See Stone, 449 U.S. at 41 (noting that the presence of a secular purpose to a law does not automatically "avoid conflict with the First Amendment"). 26. 456 U.S. 228 (1982). 27. See MiNN. STAT. 309.515(b) (1978) (amended 1983) (exempting religious organizations from the registration and reporting requirements of the solicitation law if they received more than half of their contributions from their own members). 28. See Larson, 456 U.S. at 230 (describing the provisions of the statute). 29. See id at 246-47 & n.23 (asserting that the statute's fifty percent exemption favored "well-established churches" as opposed to newer or smaller sects that rely on soliciting funds from people in public places). 30. See id at 254 (noting legislative intentions to deliberately exempt a Roman Catholic Archdiocese from the statute's requirements, yet include, in the words of one legislator, "people that are running around airports"). 31. See i& at 252 ("[T]he Lemon v. Kurtzman 'tests' are intended to apply to laws affording a uniform benefit to al religions, and not to provisions like 309.515, subd. 1 (b)'s fifty percent rule, that discriminate amongreligions."). 32. Id. at 246. 33. See Larson, 456 U.S. at 246 ("[W]hen we are presented with a state law granting a

1028 87 IOWA LAWREVIEW [2002] close fit between the law and its purpose nor a compelling government interest at stake, the Court ruled for the plaintiffs. 34 The Court found that the statute's "fifty per cent rule sets up precisely the sort of official denominational preference that the Framers of the First Amendment forbade." 35 Larson stands as a rare Establishment Clause case in which the Court applied strict scrutiny to church-state relations. 6 Shortly after Stone and Larson, the Court shifted its analysis once again and decided Marsh v. Chambers and Lynch v. Donnelly using a "historical practice" criterion. 39 In Marsh, a member of the Nebraska state legislature challenged its traditional practice of opening each work day with a prayer administered by a state-paid chaplain. 40 Neglecting to use the Lemon test, 4 ' the Supreme Court instead examined the daily prayers in reference to historical practice. Specifically, the Court noted that the nation's First Congress voted to pay a chaplain to administer daily prayers in Congress within the same week it approved a draft of the First Amendment. 42 It found that this historical evidence showed that the nation's founding fathers accepted government-sponsored prayer in Congress, and therefore, the same practice was allowable in the Nebraska legislature. 43 It also found that although the daily prayers were a religious practice, they did not amount to an establishment of religion, but a long standing social tradition with no denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality."). 34. See id. at 255 (noting that the Minnesota law was "not closely fitted to the furtherance of any compelling governmental interest... [and] therefore violates the Establishment Clause"). 35. Id. 36. The Court may have abandoned the strict scrutiny test employed in Larson. See Norman Dorsen & Charles Sims, The Nativity Scene Case: An Error of Judgement, 1985 U. ILL. L. REV. 837, 841-42, 849-50 (questioning the Court's use of less strict tests in Establishment Clause cases when strict scrutiny may have been a better criterion). 37. 463 U.S. 783 (1983). 38. 465 U.S. 668 (1984). 39. SeeJOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAw 1230-31 (5th ed. 1995) (discussing the Supreme Court's examination of the historical acceptance of the challenged practices in both cases). 40. See Marsh, 463 U.S. at 784 (describing the Nebraska legislature's regular practice of beginning work days with a prayer). 41. The Court provided no explanation why the Lemon test was not applicable. This was clearly noted by Justice Brennan in dissent. Marsh, 463 U.S. at 796 (Brennan, J., dissenting) ("The Court makes no pretense of subjecting Nebraska's practice of legislative prayer to any of the formal 'tests' that have traditionally structured our inquiry under the Establishment Clause."). 42. See id. at 788-89 (describing how the nation's First Congress and many early state legislatures opened daily business with prayers). 43. See id at 790 ("It can hardly be thought that... Members of the First Congress... intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable.").

POSTING THE TEN COMMANDMENTS 1029 overtly harmful effects. 44 Again relying on history, the Court reasoned that the First Congress could not have deemed the prayers coercive the same week it had debated church-state interaction. 4 5 In Lynch, the Supreme Court confronted the city of Pawtucket's forty year practice of displaying a Christian nativity scene, or crche, along with a Christmas tree and other holiday symbols in a downtown park during the 46 holiday season. The Court began its analysis by outlining numerous historical practices in which government officially acknowledged or sponsored religion in everyday life. 47 The Court acknowledged use of the Lemon test in past cases, but emphasized its "unwillingness to be confined to any single test or criterion" in church-state cases, 48 and then focused its analysis on the nativity scene "in the context of the Christmas season." 49 Instead, the Court used both the Lemon test and a historical practice analysis 5 akin to the one employed in Marsh The Court first upheld Pawtucket's right to display the creche after applying the Lemon test in reference to the city's overall physical display during the Christmas season. 51 It found that the city's intention to celebrate the national Christmas holiday with depictions of traditional Christmas themes, including a re-creation of the holiday's origin-the creche--was a 52 legitimate secular purpose. Secondly, the inclusion of the creche in the display did not have the principal effect of advancing religion. Although the Court acknowledged an effect, it employed an historical practice rationale similar to its reasoning in Marsh and concluded that its effect was merely incidental relative to other acceptable practices involving church-state relations. 53 Because activities like 44. See id at 792 (describing the prayers as a historical custom with no potential for coercive government establishment of religion). 45. See i&t at 790-92 (explaining how congressional debate indicated an acceptance of the prayers). 46. See Lynch v. Donnelly, 465 U.S. 668, 671 (1984) (listing the other figures and decorations on display, including a Santa Claus house, reindeer pulling Santa's sleigh, Christmas carolers, large candy canes, colored lights, various animals, and a "SEASONS GREETINGS" banner). 47. See i&. at 676-77 (referring to official recognition of the Christmas and Thanksgiving holidays, state payment of religious ministers in the armed forces, printing of "In God We Trust" on currency, presentation of religious artwork in the National Gallery, and the permanent display of Moses and the Ten Commandments in the Supreme Court itself). 48. Id. at 679. 49. Id. 50. See id at 681 (relying on the Lemon test's purpose prong); id. at 674-77 (outlining historical examples of acceptable government practices involving religion). 51. Lynch, 465 U.S. at 687. 52. See id at 681 ("The display is sponsored by the city to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes."). 53. See id. at 681-83 (finding that the display of the crhche along with the other decorations was no more beneficial to religion than state funding of transportation to religion-

1030 87 IOWA LAWREVIEW [2002] using public funds to buy textbooks for parochial school students and financing church-affiliated schools was traditionally acceptable, so was the creche display. 54 Finally, the Court returned to the Lemon test and rationalized that the overall display passed its entanglement prong since it involved only minimal administrative participation, there was no contact with religious organizations, and the $200 value of the creche was insignificant. 5 In her concurrence, Justice O'Connor agreed with the majority that the display had a secular purpose 56 and no principal effect on religion. However, her conclusion was reached through a two-prong "endorsement" analysis derived from the Lemon test. 58 For Justice O'Connor, the two key questions were 1) whether the government actor was intending to endorse religion, reflected in the purpose prong of Lemon; and 2) whether the effect of the practice created a public perception that the government actor endorsed religion, reflected in Lemon's effect prong: 5 9 [First Prong] The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.... [Second Prong] What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion. It is only practices having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or public perception.6 0 "An affirmative answer to either question" made the government 61 practice unconstitutional. Under this analysis, Justice O'Connor concluded that the city had not intended to endorse religion, nor had its display created such a perception. 62 sponsored schools or the display of religious art in public museums). 54. See id. (noting that the crhche display was no more offensive to the Establishment Clause than the exhibition of religious art in government-supported museums and other situations where the government tangentially involves itself with religion in a manner not violative of the Establishment Clause). 55. See id. at 684 (finding that the city's involvement with the display was of such a small degree that no excessive entanglement existed). 56. See Lynch, 465 U.S. at 692 (O'ConnorJ, concurring) (noting that the creche was just a traditional display accompanying the secular celebration of the holiday season). 57. See id. at 693 (O'Connor, J., concurring) ("It cannot fairly be understood to convey a message of government endorsement of religion."). 58. See id. at 690-91 (defining the endorsement test as a better developed and refined framework of the principles stated in Lemon). 59. See id. at 691-92 (explaining the endorsement analysis). 60. Id. 61. Lynch, 465 U.S. at 690 (O'ConnorJ, concurring). 62. See id. at 693 (O'Connor, J., concurring) (agreeing with the majority that the display

POSTING THE TEN COMMANDMENTS 1031 In dissent, Justice Brennan sharply criticized the ease with which the Court found the display to have a secular purpose with no religious effect. 63 He particularly emphasized the effect on nonreligious or religious minorities viewing the display. Upon seeing a symbol strongly associated with the mystical beliefs of Christianity, Justice Brennan believed that non- Christians might conclude that their religions are not entitled to the same benefits and recognition by the state." Justice Brennan's concerns about the effects of such "religious chauvinism"6 were considered at length in the district court's opinion, particularly with regard to the potential effects on children. 66 A clinical psychologist testifying for the plaintiffs opined that symbols are particularly important to young children, and that religious symbols have special significance due to their superhuman nature. 67 The display's nativity scene would suggest to young children of non-christian faiths that they were abnormal since their religions were excluded.? S However, a philosophy professor testifying for the city believed that the religious impact of the creche would be minimal. 69 Arguing that all symbols operate in context, he asserted that although the creche was itself religious, its significance would be dulled. 70 He rationalized that viewers would not be in a religious mindset must be taken in context, its purpose was to celebrate the Christmas holiday, and any religious impact of the creche's inclusion in the display on viewers would be negated by the other secular decorations). 63. See id. at 700-01 (Brennan, J., dissenting) (asserting that the city had a sectarian purpose of granting prestige on one religion); see also Donnelly v. Lynch, 525 F. Supp. 1150, 1158-59 (D.tRI. 1981). In Donnelly, the Mayor of Pawtucket held a press conference in front of the nativity scene after the plaintiffs had sued the city. Id. at 1158. The press conference was described as "more in the nature of a rally, with the Mayor talking emotionally about patriotism, freedom and the Pawtucket tradition of a nativity scene, and vowing to fight vigorously the ACLU's attempt to take Christ out of Christmas." Rd. at 1159. 64. See Lynch, 465 U.S. at 701 (Brennan, J., dissenting) ("The effect on minority religious groups... is to convey the message that their views are not similarly worthy of public recognition nor entitled to public support. Itwas precisely this sort of religious chauvinism that the Establishment Clause was intended forever to prohibit."). 65. I. 66. See Donnelly, 525 F. Supp. at 1159-61 (outlining testimony about the psychological impacts of the display). 67. I& In terms of Pawtucket's creche, the "symbol's impact on a child would be heightened by the magical quality of the display's bright lights and gifts of candy from Santa." Id. Also included in the display was a Santa Claus house featuring a live Santa handing out candy. Id. at 1155. Colored lights illuminated the entire display, and Christmas music played in the background. Id. at 1155-56. The nativity scene was approximately life-sized, featuring Mary andjoseph kneeling before the baby Jesus, angels, kings, and shepherds. Id. at 1156. 68. Id. at 1159. The psychologist concluded that the nativity scene's inclusion reinforces a suggestion that non-christians are somehow "less important" than Christians. Id. 69. See id. at 1160-61 (discussing the testimony of Dr. David Freeman about the cr~che's impact on observers). 70. See id at 1161 (describing Dr. Freeman's opinion that the effect of the crhche was to help induce a holiday mood to "spend money in shopping" and not to make a religious

1032 87 IOWA LAWREVIEW [2002] but rather a "holiday" mindset, and the overall physical context of the display was secular. 7 ' B. ENDORSEMENT BECOMES THE CRITICAL ESTABLISHMENT CLAUSE TEST The issue of religious symbols in secular context reappeared in Allegheny v. ACLU. At issue were two holiday displays: 1) a framed creche in a county courthouse, 73 and 2) a Chanukah menorah alongside a Christmas tree and on county property.74 Acknowledging the "endorsement" test as the proper analysis, Justice Blackmun authored a divided opinion finding the creche a violation S of 75 the Establishment Clause, but the menorah display permissible. The Court first decided the easier case of the creche. The singular display of the creche, with nothing to detract from its religious symbolism, amounted to a direct endorsement of Christianity. 76 It stood alone, surrounded by a flower frame in a conspicuous part of the courthouse. 77 Thus, the religious impact of the creche was not negated by any secular surroundings. The flower frame only heightened the emphasis on the creche. 7 8 The more difficult case was the menorah display. In a plurality opinion, six of the justices found the display permissible under the Establishment statement). 71. See Donnelly, 525 F. Supp. at 1160 (discussing the psychologist's opinion that religious symbols only have an effect in religious settings). A religious symbol would have important significance in a setting where people are in a religious mindset. However, a religious symbol would not have the same impact in secular settings. For example, when viewing religious art in a museum, the art would have little religious impact since the viewer is in a museum, which purpose is to display a wide variety of art, and the viewer's mindset is geared towards academic or aesthetic thoughts-not religion. Accordingly, the effect of Pawtucket's display would not be to induce any religious response, but rather to create a general feeling of holiday celebration and joy during the Christmas season. Id, 72. 492 U.S. 573 (1989). 73. See id. at 580-81. The creche was not alone. Poinsettia plants and small evergreen trees were placed on each side of it. Id- at 580. The Court considered the plants and trees as a decorative frame, not detracting from but highlighting the importance of the nativity scene. Id. at 599. 74. Id. at 581-82, 587. The menorah was eighteen feet tall and the Christmas tree forty-five feet tall. Id. at 587. At the foot of the tree was a sign reading: "During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom." Id. at 582. 75. See id. at 621. Only Justices Blackmun and O'Connor enthusiastically embraced the endorsement test as a "sound analytical framework for evaluating governmental use of religious symbols" and found the creche violative but the menorah display acceptable. Id. at 595. 76. See id. at 601 ("[The city] has chosen to celebrate Christmas in a way that has the effect of endorsing a patently Christian message...."). 77. See Allegheny, 492 U.S. at 599-600 (noting that the creche was placed in the "most beautiful part" of the courthouse, further suggesting the county's endorsement of the display). 78. See id. at 599 (analogizing the flower frame to a Christian cross surrounded by Easter lilies).

POSTING THE TEN COMMANDMENTS 1033 Clause. Justice Blackmun 79 and Justice O'Connor concluded that the display was not a government endorsement ofjudaism, but a recognition of diverse traditions of holiday celebration since the menorah was displayed alongside the tree-two symbols popularly associated with the holiday season.81justice Kennedy, in an opinion joined byjustices Rehnquist, Scalia, and White, found the display permissible under a different analysis. Identifying the touchstone of the Establishment Clause to be government coercion, Justice Kennedy concluded that the display did not indicate the county's support to proselytize Judaism. Justice Brennan, joined in part by Justice Marshall and Justice Stevens, found the menorah/tree display unconstitutional 3 Whereas Justices Blackmun and O'Connor concluded that the secular Christmas tree-an item popularly associated with the holiday festivities-dulled the religious nature of the menorah, Justice Brennan came to the opposite result. For him, the menorah, a symbol strongly associated with Judaism, gave religious significance to the otherwise commonplace tree.8 4 Although it could be contended that a Christmas tree had both secular and religious components, the menorah's presence emphasized the tree's religious significance-a symbol celebrating the birth of Jesus Christ-thus amounting to an endorsement of both Judaism and Christianity. 5 Allegheny confirmed Justice O'Connor's endorsement test as the Court's 86 preferred Establishment Clause analysis. Despite the Justices' divergent conclusions regarding the displays' constitutionality, Justice Blackmun noted in the Court's opinion that the endorsement test first set forth in Lynch had the consensus of the current Court 7 and that it provided a "sound analytical 79. See id. at 617 (holding that the Christmas tree was the dominant symbol in the display, and its secular nature negated the menorah's religious symbolism); id at 620 (holding that the effect of the tree and menorah together symbolized the country's celebration of different holiday season traditions). 80. See il- at 635-36 (O'Connor, J., concurring) (concluding that the display was a celebration of pluralism and cultural diversity during the holiday season). 81. See id. at 620 (finding the display permissible); id. at 635-36 (O'ConnorJ., concurring) (same). 82. See Allegheny, 492 U.S. at 659 (Kennedy, J., concurring) (arguing that the Establishment Clause only bars the government from coercing individuals to participate in religion or "establishing" a religion by granting it direct benefits). 83. Id. at 637 (Brennan,J., concurring and dissenting). 84. See id. at 641 (Brennan, J., dissenting) (acknowledging a contextual approach to the display and finding that the menorah dominated the Christmas tree); id. at 654 (Stevens, J., dissenting) (concluding that the tree was now religious in light of the menorah). 85. See id. at 644 (arguing that the Establishment Clause does not allow simultaneous promotion of more than one religion in the name of pluralism or diversity). 86. See id at 592-95 (discussing reasons why the endorsement test was the proper analysis). 87. See Allegheny, 492 U.S. at 597 (noting that the majority ofjustices in Lynch agreed upon the principles of the endorsement test, and that the Court had since adopted those principles).

1034 87 IOWA LAWREVEW [2002] framework. '' 88 Justice Blackmun further noted that the Court had generally relied on endorsement-like analyses in many of its previous Establishment Clause cases.8 9 More specifically, he noted that the Lemon test offered no means to differentiate between permissible and impermissible government endorsements of religion.9 g Under the endorsement analysis, as in the Lemon test, government purpose was a key factor. 9' However, the endorsement test's approach to purpose, with its emphasis on perceived endorsement, provided a more straightforward means to determine if government 92 practices were unconstitutional. Lemon simply asked whether the government action had a "principal or primary effect" 93 but provided little guidance on what constituted such an effect. The endorsement test clarified this inquiry-impermissible government involvement with religion exists when the public perceives that government is endorsing religion. 94 The endorsement test therefore clarified the principles stated in Lemon, and was thus a better test than the Lemon analysis. 95 Since Allegheny, the Court has continued its reliance on the endorsement test for Establishment Clause 96 cases. C. DETERMINING GOVERNMENTPURPOSE With the exception of the Marsh "historical practice" analysis, the decisive tests employed by the Court place importance on the legislative intent of challenged statutes. Justice O'Connor's endorsement test explicitly calls for an inquiry into the government actor's intentions. 7 The Lemon test's first prong similarly required that a "statute must have a secular,98 legislative purpose." The Court's per curiam opinion in Stone was based on 88. Id. at 595. 89. See id. at 592-94 (noting numerous cases where the Court had emphasized "endorsement" or similar concepts as touchstones for considering Establishment Clause cases). 90. See id. at 594 (noting the inadequacies of the Lemon test). 91. See id. at 592 (noting that the Court pays "particularly close attention to whether the challenged governmental practice either has the purpose or effect of 'endorsing' religion"). 92. See Alegheny, 492 U.S. at 595 (noting that the endorsement test "articulates a method for determining whether the government's use of an object with religious meaning has the effect of endorsing religion"). 93. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). 94. See Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring) (discussing the endorsement test and the importance of determining what message the government communicates in its activities). 95. See Allegheny, 492 U.S. at 595 (noting that the endorsement test better articulates the principles stated in Lemon). 96. The Court most recently applied the endorsement test in Santa Fe Independent School District v. Doe, 530 U.S. 290, 316 (2000). 97. See Lynch, 465 U.S. at 690 (O'Connor, J., concurring) (stating that a finding of endorsement depends on what the government intended to communicate and what was actually communicated). 98. Lemon, 403 U.S. at 612.

POSTING THE TEN COMMANDMENTS 1035 its conclusion that the "pre-eminent purpose" 99 of posting the Ten Commandments on school walls was religious.' 00 In Larson, the Court specifically looked to the history of the Minnesota statute to find an intent by legislators to favor some religions over others. 10 ' Several cases speak to how the Court discerns such legislative intentions. In Wallace v. Jaffree, 0 2 the Court noted the possibility that some state legislatures may use false pretenses to disguise religious intentions. 0 Wallace involved an Alabama statute providing a one minute period of silence for meditation or voluntary prayer at the start of each day in public schools. 4 The Court struck down the statute after determining its purpose was religious and not secular. 0 5 Writing for the majority, Justice Stevens emphasized the statements of state Senator Donald Holmes, the statute's original sponsor, in legislative hearings. 00 Speaking before his colleagues, Senator Holmes related his intention "to accomplish the return of voluntary prayer in our public schools... 107 These explicit statements by the bill's sponsor before the rest of the state legislature illustrated a clear religious motive underlying the law, despite the fact that the facial language of the statute merely permitted voluntary prayer or meditation. 08 In concurring opinions, Justice O'Connor, the original proponent of the endorsement test, and Justice Powell, spoke of possible "sham" purposes of state legislatures, and concluded that courts should look to legislative hearings to determine their true intentions. 0 9 99. Stone v. Graham, 449 U.S. 39,41 (1980). 100. See id. (stating that the "legislative recitation of a supposed secular purpose"--the small print notation of the Ten Commandments' legal relevance-did not disguise the Commandments' undeniable religious nature). 101. See Larson v. Valente, 465 U.S. 228, 254-55 (1982) (finding that some Minnesota senators wanted to protect a Roman Catholic Archdiocese but not other religious groups from a solicitation law). 102. 472 U.S. 38 (1985). 103. See id. at 59-60 (noting that despite the state's argument that it was merely accommodating voluntary prayer in schools, the state's true intentions were to "characterize prayer as a favored practice"). 104. The Alabama statute read: At the commencement of the first class of each day in all grades in all public schools, the teacher in charge of the room in which each such class is held may announce that a period of silence not to exceed one minute in duration shall be observed for meditation or voluntary prayer, and during any such period no other activities shall be engaged in. ALA. CODE 16-1-20.1 (1995). 105. See Wallace; 472 U.S. at 56 (finding no secular purpose to the statute). 106. See id. at 56-57 (quoting a speech by Senator Holmes to the Alabama legislature). 107. S. 81-357, Reg. Sess., at 921 (Ala. 1981), cited in Wallace, 472 U.S. at 57 n.43. 108. ALA. CODE 16-1-20.1 (1995). For full text of the statute, see supra note 104. 109. See Wallace, 472 U.S. at 64 (Powell, J., concurring) ("[T] his secular purpose must be,sincere'; a law will not pass constitutional muster if the secular purpose articulated by "the

1036 87 IOWA LAWREVIEW [2002] In Edwards v. Aguillard," 0 the Court further clarified the scope of an inquiry into the true legislative intent of state laws."' Edwards dealt with a Louisiana statute requiring schools to teach both "creation-science" and "evolution-science" if schools chose to teach either theory. 1 2 The stated purpose of the statute was "protecting academic freedom."" 3 Restating that a statute's secular purpose "be sincere and not a sham," l " 4 the Court struck down the Louisiana law, emphasizing statements by the statute's sponsor in legislative hearings indicating a religious motivation.11 5 In a concurring opinion, Justice Powell, joined by Justice O'Connor, noted that an inquiry into legislative history also included a review of the "goals and activities" of organizations referred to in legislative hearings. 1 1 6 Justice Powell made this statement in reference to a creation scientist who testified in support of the bill before the legislature." 7 In Santa Fe Independent School District v. Doe, 118 the Court's most recent Establishment Clause case, the Court ruled that a public school district's policy permitting student-led prayer before high school football games was unconstitutonal." 9 Although prayers were student-led, the district's policy constructed a specific mechanism allowing prayer by providing for student elections to determine which students would lead prayers,1 2 and the prayers legislature is merely a 'sham.'"); id. at 74 (O'Connor, J., concurring) ("This question cannot be answered in the abstract, but instead requires courts to examine the history, language, and administration of a particular statute to determine whether it operates as an endorsement of religion."). 110. 482 U.S. 578 (1987). 111. Id. at 597. 112. LA. REv. STAT. ANN. 17:286.4 (West 1982). This statute was deemed unconstitutional in Edwards v. Aguillard, 482 U.S. 578 (1987). 113. LA. REV. STAT. ANN. 17:286.2 (West 1982). The facial justification rested on a "diversity" rationale--if school teachers were to teach one theory, they must also teach the other, therefore protecting their "academic freedom" to teach both theories. Id. As noted by the Court, this rationale failed because the statute actually limited academic freedom-a teacher could no longer use her discretion to teach only one theory. Edwards, 482 U.S. at 586. 114. Edwards, 482 U.S. at 586-87. 115. See id. at 592 (noting that the law's sponsor, Senator Bill Keith, expressed "disdain for the theory of evolution" and made repeated references to his personal religious beliefs in promoting the bill). 116. Id. at 601-02 (Powell,J., concurring). 117. See id. (reviewing the core religious philosophies of the Institute for Creation Research and the Creation Research Society, two organizations referred to in the statute's legislative hearings); see also Epperson v. Arkansas, 393 U.S. 97, 98 (1968) (striking down a state law prohibiting the teaching of evolution and noting that the "statute was a product of the upsurge of 'fundamentalist' religious fervor of the twenties"). 118. 530 U.S. 290 (2000). 119. See id. at 316 ("Therefore, the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation."). 120. See id. at 298 n.6 (describing the district's election mechanism allowing students to determine if invocations would be allowed at games and specifying student volunteers who would administer them).

POSTING THE TEN COMMANDMENTS 1037 were delivered at a school sponsored event-football games. These two factors showed "actual or perceived endorsement" of religion. 122 More specifically, the facial purpose of the pre-game prayer policy "to solemnize the event " 123 was textual evidence of the school district's purpose to 124 encourage religion. Yet in determining if the purpose of the school district's policy was to endorse religion, the Court believed it should not "stop at an analysis of the text of the policy " 1 25 but should also examine "the circumstances surrounding its enactment." 26 Indeed, evidence existed suggesting that the school district had permitted or promoted sectarian practices at its schools for several years. 12 7 In one particular instance, a teacher handed out fliers to his students for a religious revival and vehemently denounced one student's religion in class. 28 Refusing "to turn a blind eye to the context in which this policy arose, " 129 the Court held that the school district's policy amounted to unconstitutional endorsement of school prayer.1 30 D. THE IMPORTANCE OFPROTECTING ScHooLcHILDREN Another general theme recurring throughout the Court's Establishment Clause cases is its recognition of age-related differences among those exposed to alleged state-sponsored religious practices. This concept was initially hinted at in early pre-lemon cases. In Illinois ex rel McCollum v. Board of Education,'1' the plaintiff challenged the local public board of education for allowing religious teachers to enter public schools 121. See id. at 307-08 (describing the prayer invocations as school-endorsed because they were spoken at a school function, on school property, with school loudspeaker equipment). 122. Id at 307. 123. Santa Fe Indep. Sch. Dist., 530 U.S. at 298 n.6. The purpose as stated in the policy's text was "to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition." Id. The Court found that a "religious message is the most obvious method of solemnizing an event." Id. at 291. 124. Id. at 307 ("Thus, the expressed purposes of the policy encourage the selection of a religious message... "). 125. Id. at 315. 126. Id 127. See id at 295 (noting that Christian invocations were allowed at prior sporting events and graduation ceremonies). 128. Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806, 810 (5th Cir. 1999). Jane Doe II's seventh grade history teacher distributed fliers for a Baptist revival in class. Id. AfterJane Doe II asked if non-baptists could attend, the teacher asked what religion she was. Id Upon learning she was Mormon, the teacher "launched into a diatribe about the non-christian, cult-like nature of Mormonism, and its general evils." Id This led other students to comment (in reference to Jane Doe II's religion) that "[hie sure does make it sound evil," and "[g]ee... it's kind of like the KKK, isn't it?" Id. 129. Santa Felndep. Sch. Dist., 530 U.S. at 315. 130. See i&. at 316 (holding that "the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation"). 131. 333 U.S. 203 (1948).

1038 87 IOWA LAWREVIEW [2002] and instruct students about particular religious tenets during normal school hours. 32 The Court condemned the practice because the state was clearly aiding religious proselytization in public schools since it was actually providing students for religious indoctrination. 3 3 Concurring in judgment, Justice Frankfurter saw danger in the practice because schoolchildren are prone to imitate others, and not likely to digress from group norms. 34 Students who did not share the same faiths as the religious instructors would either follow their peers and learn of different faiths, or risk feeling alienated within the school environment.1 35 In School District of Abington v. Schempp, 136 plaintiffs challenged a Pennsylvania law 3 7 and a Baltimore school board rule, 3 both of which mandated Bible readings at the start of each school day, but allowed objecting students to not participate in the exercises upon the written request of parents or guardians. The Court struck down the statute and the school board rule as state-sponsored religious ceremonies. 3 1 In a concurrence similar to Justice Frankfurter's opinion in McCollum, Justice Brennan remarked that the participation exemptions had little real effect since schoolchildren "are disinclined at this age to step out of line or to flout 132. See id. at 205-06 (describing the Board's practice of allowing thirty minutes of religious instruction each week during the school day for pupils whose parents consented to it). Separate classes were taught by Protestant and Catholic priests and ajewish rabbi. Id. at 208-09. 133. See id. at 212 (holding that the state's "compulsory public school machinery" helped provide students for sectarian religious classes). 134. See id. at 227 (Frankfurter, J., concurring) ("The law of imitation operates, and nonconformity is not an outstanding characteristic of children."). 135. See id. at 227-28 ("The children belonging to these non-participating sects will thus have inculcated in them a feeling of separatism when the school should be the training ground for habits of community, or they will have religious instruction in a faith which is not that of their parents."). 136. 374 U.S. 203 (1963). 137. The Pennsylvania statute read: "At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian." PA. STAT. ANN. tit. 24, 15-1516 (West 1992). This statute was deemed unconstitutional in School District ofabington v. Schempp, 374 U.S. 203, 223 (1963). 138. The Baltimore school board rule read: Opening Exercises. Each school, either collectively or in classes, shall be opened by the reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord's Prayer. The Douay version may be used by those pupils who prefer it. Appropriate patriotic exercises should be held as a part of the general opening exercise of the school or class. Any child shall be excused from participating in the opening exercises or from attending the opening exercises upon the written request of his parent or guardian. Schempp, 374 U.S. at 211 n.4. 139. See id. at 223-24 (holding that the laws were Establishment Clause violations due to their clear religious character).